High court to weigh in on HIV disclosure

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If HIV-AIDS is no longer a death sentence, should not disclosing an infection to a partner still carry a jail sentence?

Supreme Court of Canada judges will contemplate that very question Wednesday as two cases, from Manitoba and Quebec, bring the disclosure debate to the nation’s highest court.

The B.C. Civil Liberties Association is arguing that using the Criminal Code to persecute those that fail to disclose their disease is too harsh in all but the most extreme cases.

Lawyer Michael Feder said advances in treatment over the past two decades – allowing patients to live normal lives with virtually undetectable HIV viral loads – calls for a fresh look at the issue.

“The body of law is misguided. Everyone is responsible for their own sexual health – it shouldn’t be the subject of criminal law,” Feder said. “It’s hard to imagine a disease that has seen more significant advancements and treatments in the last 20 years. It’s not a death sentence, but the stigma still persists.

“People tend to grossly overestimate the risk of transmission – which is far less than one per cent for a person going through treatment.”

Many transmissions occur when the carrier doesn’t even know they’re infected.

Only cases where an offender is purposely trying to infect sexual partners should be prosecuted through the criminal justice system, Feder believes.

The medical community backs him up.

In an editorial published in the Canadian Medical Association Journal Dec. 19, 2011, the B.C. Centre for Excellence in HIV/AIDS calls for Canada to stop being “a world leader” in HIV non-disclosure prosecutions.

“Criminalization of HIV exposure stigmatizes and discourages access to HIV education, testing and treatment,” the organization argues. “(Highly active antiretroviral therapy) has changed HIV/AIDS into a chronic manageable condition and has emerged as the most powerful strategy to prevent new infections through vertical, blood-borne or sexual routes.”

Feder expects Supreme Court judges to, at the very least, redefine non-disclosure laws that have not been updated since 1998.